PUBLIC LAW BOARD NUMBER 3530
Award Number: 65
Case Number: 65
PARTIES TO DISPUTE
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
AND
NORFOLK AND WESTERN RAILWAY COMPANY
STATEMENT OF CLAIM
Machine Operator, D. R. Hall, Rt. 1, Boa 189, LaCrosse, VA
23950, and J. K. King, Rt. 2, Boa 139, Kenbridge, 4A 23944
were assessed a 30 day suspension for allegedly leaving
House Track Switch open resulting in Extra 541 East running
through the switch and causing a derailment. Claim was
filed in accordance with Railway Labor Act and agreement
provisions. Employes request pay for the 30 days with
seniority and vacation rights unimpaired.
FINDINGS
Claimants were employed with Carrier as Machine Operators.
By
letter dated December 17, 1984, the Claimants were notified of
their removal from service pending investigation for their
responsibility for negligently failing to close a switch on
December 14, 1984. An investigation was held on December 28,
1984. By letter dated January 16, 1985, the Claimants were
suspended for 30 days.
The issue to be decided in this dispute is whether the
Claimants were disciplined for just cause under the Agreement.
The position of the Organization is that Carrier failed in
all respects to show that either of the Claimants was negligent.
The Organization contends that the testimony of the Claim- -
ants established that they locked the switch in question and
further that they double checked to ensure that it was locked.
The Organization further cites testimony at the hearing indicat
ing that two employees had previously lost switch keys in that
area and that therefore anyone could have subsequently unlocked
the switch, and that they were not responsible for the ensuing
damage to the switch.
The position of the Carrier is that the Claimants were
properly disciplined for negligently failing to lock the switch
in question.
Initially, Carrier contends that substantial .evidence was
produced at the investigation regarding the Claimants' responsibility. Carrier cites the fact that the Claimants were the last
employees to use the switch prior to the mishap and that this
fact alone creates a presumption that they were responsible for
failing to lock the switch. Carrier further cites the testimony
of Claimant Hall that he did not actually physically check to
ensure that the switch was locked. Carrier additionally cites
the testimony of Claimant King and argues that his testimony
regarding the locking of the switch lacks credibility and is
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inconsistent with
the facts
presented. Carrier concludes that in
light of
the Claimants'
negligence and the potentially dangerous
situation that it
created, the discipline
imposed was entirely
warranted.
After review of the record. the Board finds that the claim
must be denied.
It is not the purpose of this Board to
rehear an
investigation that Carrier
held but
only to determine if the discipline
imposed was arbitrary, capricious or an abuse of discretion.
The present dispute involves circumstantial evidence and the
determination of credibility. It is a well established principle
that Carrier may weigh evidence and determine issues of credibility so long as it 'does not. abuse its discretion in doing so. It
is also a well
established principle
that a charge against an
employee may
be sustained on the basis of circumstantial evidence, so long as that evidence is substantial and supportive of
the charge
. We find that substantial evidence exists to sustain
the charge against the Claimants. It is unrefuted that the
Claimants were the last employees to officially use the switch
prior to the mishap and that the switch was in fact unlocked at
that time. Further, we find no evidence of an intervening cause.
The fact that keys to the switch may have been lost in no way
establishes a possible intervening cause, particularly since no
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motive has been established for an employee finding a key to
unlock the switch. Absent evidence of an intervening cause, we
find that Carrier did not abuse its discretion in determining
that the testimony of the Claimants failed to establish their
lack of culpability regarding the incident. We therefore find
that Carrier adequately sustained the charges against the
Claimants and that the discipline imposed was reasonable under
the circumstances.
AWARD
Claim denied.
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